William Perry Pendley: 30-Year-Old Property Rights Issue Opens Supreme Court Term

On Monday, October 3, the Supreme Court of the United States will open its 2022 Term with oral arguments in Sackett v. Environmental Protection Agency. 

At issue is whether the Environmental Protection Agency (EPA) and the U.S. Court of Appeals for the Ninth Circuit used the correct test to determine if certain wetlands are “waters of the United States” under the Clean Water Act (CWA). 

Unfortunately for the Sacketts, who are represented pro bono by Pacific Legal Foundation, it is not their first appearance at the Court. 

In the summer of 2007, Michael and Chantrell Sackett of Priest Lake, Idaho moved dirt on their property to build a house on land with a sewer hookup, in a developed area, far from navigable water, zoned for residential construction. 

That November, the EPA declared their property a “wetland,” barred them from building a house, and mandated they restore the land to its previous state or pay civil penalties of up to $32,500 per day! 

The Sacketts were denied a hearing and their lawsuit in Idaho federal district court was dismissed after the court held the CWA bars judicial review of EPA’s “compliance orders” before any “enforcement action.” 

In 2010, the Ninth Circuit upheld the district court’s decision, ruling the Sacketts’ constitutional rights had not been violated.  In 2011, the Supreme Court agreed to hear their case and, in 2012, ruled unanimously that the Sacketts had the right to challenge the EPA’s “compliance order.”

In the decade since their victory, the Sacketts have battled the refusal of the EPA to adhere to rulings by the Court sharply limiting the scope of the agency’s authority over what it and the U.S. Army Corps of Engineers expansively label “wetland” and under their “water of the United States” authority.  Perhaps this time, the Court will set them straight.

In the meantime, however, it is important to remember that bureaucrats’ abuse of the property rights of landowners goes back not just a decade when the Supreme Court unanimously righted the wrong suffered by the Sacketts.  Instead, it stretches back anther twenty years.  

In 1992, Larry Squires of Hobbs, New Mexico, veterinarian, rancher, entrepreneur, and self-proclaimed environmentalist, was told by the EPA, despite extensive factual presentations by Dr. Squires, that the lands upon which he was conducting a business operation into which he sunk more than a $1 million were “wetlands” under the CWA. 

Hence, the EPA told him that his use of those lands was illegal, that he was subject to a “cease and desist order,” and that breach of that order would result in fines of $125,000 a day!  Dr. Squires’ challenge to the EPA’s “waters of the United States” designation drew an angry response from the EPA and its lawyers who threatened him with criminal charges, jail time, and “the full weight of the federal government.”  Dr. Squires abandoned his business, but he also went to federal court.

The EPA order was based on a 1986 rule that the potential use of any waters—even intermittent water bodies such as those that infrequently develop on the dry sinkholes on Dr. Squires’ arid property—by migratory birds magically converts those areas into “waters of the United States.” 

Dr. Squires knew his lands were not “wetlands”; after all, water from occasional rains quickly evaporated; there were three feet of impermeable clay beneath the sinkholes, there was no ground water in the area, and the nearest navigable stream was forty miles away.

None of that matter, declared the EPA, which advised the New Mexico federal district court it could not hear Dr. Squires’ case because:  the EPA’s order was only a “pre‑enforcement decision;” the EPA had not taken “final” action; the United States had not waived its sovereign immunity; and Dr. Squires’ constitutional rights had not been violated. 

The district court agreed.  In 1995, the U.S. Court of Appeals for the Tenth Circuit noted that Dr. Squires’ “policy argument that it should not be necessary to violate an EPA order and risk civil and criminal penalties to obtain judicial review is well taken,” but it did not find the situation “constitutionally intolerable,” given its desire not to “undermine the EPA’s regulatory authority.” 

In 1996, Dr. Squires’ petition for Supreme Court review was denied; the Sacketts first victory would come 16 years later. 

Monday, as the nine justices hear the Sacketts’ case once again, one wonders how many landowners have suffered fates similar to those of the late Larry Squires and the Sacketts. 

Too many, especially given that the abuse meted out by federal agencies is well known to Congress, which ought to be in the business of fixing things.  Eventually, the Supreme Court might make it right but it should not take decades to do so.

*Mr. Pendley, a Wyoming attorney, served in both the Reagan and Trump administrations and litigated pro bono over three decades for western clients, including before the Supreme Court.